Bass v. Spitz

• Decision Date: 23 March 1981
• Docket Number: Civ. A. No. 78-71712.
• Parties: Millard BASS, Plaintiff, v. Werner SPITZ, Individually and as Wayne County Medical Examiner, and the County of Wayne, Defendants.
• Court: U.S. District Court — Western District of Michigan

510 F. Supp. 182

Millard BASS, Plaintiff, v. Werner SPITZ, Individually and as Wayne County Medical Examiner, and the County of Wayne, Defendants.

Civ. A. No. 78-71712.

United States District Court, E. D. Michigan, S. D.

March 23, 1981.

Robert K. Tanenbaum and Jack L. Gruenstein, Philadelphia, Pa., Gerald I. Krafsur, Southfield, Mich., for plaintiff.

John J. McCann and Dean Koulouras, Asst. Corp. Counsel for Wayne County, Detroit, Mich., for defendants.

OPINION

FEIKENS, Chief Judge.

Plaintiff Dr. Millard Bass was employed as an Assistant Medical Examiner in Wayne County, Michigan. He brought this action for damages arising out of the termination of that employment. This opinion supplements certain rulings which I made before the case was submitted to the jury.

Plaintiff was a non-probationary employee of Wayne County, protected by the Michigan County Civil Service Act, Mich.Comp. Laws §§ 38.401-.428 (Mich.Stat.Ann. §§ 5.1191(1)-(28.1) (Callaghan 1973)), and by the Rules of the Wayne County Civil Service Commission. On May 14, 1976, he was "indefinitely suspended"¹ by his appointing authority, Dr. Werner Spitz, pending investigation into charges that he may have mutilated dead bodies.² A copy of the suspension notice was mailed to plaintiff at his home address.

On the day of his suspension, plaintiff was in another part of the country, sitting for a certification exam conducted by the American Board of Pathology. Two days later, on May 16, he returned to Detroit. When he arrived at Detroit Metropolitan Airport, he discovered that his suspension was receiving extensive coverage by the local news media. Before he left the airport, he wired a letter of resignation to Dr. Spitz.

Plaintiff moved from Detroit to another part of the country, and began to set up a private medical practice there. He soon learned that criminal charges had been filed against him in Detroit, arising out of the same allegations which had led to his suspension. He returned here to defend himself. Four counts of body mutilation were later dismissed at the preliminary examination for lack of probable cause.

This action has evolved considerably since it was first filed in 1978.³ In its present posture, plaintiff presents four claims against Wayne County:

(a) he claims that he was maliciously prosecuted under the four felony counts;

(b) he claims that he was deprived of his property interest in his job as Assistant Medical Examiner without due process of law;

(c) he claims that allegations made at the time of his suspension deprived him of his liberty without due process of law; and

(d) he claims that he was discharged in violation of his employment contract.

Jurisdiction over the state law claims is based on diversity of citizenship.

For the reasons outlined on the record, and elaborated below, I granted Wayne County summary judgment on the property interest claim, dismissed the contract claim, and submitted the malicious prosecution and liberty interest claims to the jury.⁴

PROPERTY INTEREST

By the close of the proofs, the evidence had established that, for a period of up to twenty days, plaintiff could have withdrawn his resignation and appealed his suspension to the Wayne County Civil Service Commission.⁵ If he had done so, the Commission would have provided him with a hearing within two weeks. Plaintiff does not now contend that such a hearing would have been inadequate.⁶ He argues that he was in a state of duress when he resigned, and that this duress continued for more than twenty days. There is evidence from which the jury could conclude that this is true.⁷ Because this duress allegedly prevented him from acting in his rational self-interest, he claims that he did not have an adequate opportunity for a post-suspension hearing.

If plaintiff was not under duress when he resigned, he could not claim a violation of his right to due process. Due process requires only that he have been given an opportunity to be heard. If he knowingly declined to take advantage of that opportunity, his right to due process simply was not infringed.⁸E. g., Stewart v. Bailey, 556 F.2d 281, 285-86, rev'd on other grounds, 561 F.2d 1195 (5th Cir. 1977); Field v. Boyle, 503 F.2d 774, 778-79 (7th Cir. 1974); Suckle v. Madison General Hospital, 499 F.2d 1364, 1367 (7th Cir. 1974); Jackson v. Fulton-DeKalb Hospital Authority, 423 F.Supp. 1000, 1003-05 (N.D.Ga. 1976), aff'd mem., 559 F.2d 1214 (5th Cir. 1977); Hayes v. Cape Henlopen School District, 341 F.Supp. 823, 833-35 (D.Del.1972). Cf. Bishop v. Tice, 622 F.2d 349, 356 (8th Cir. 1980) (same principle in a Bivens action by a federal employee). Thus, plaintiff's position is very narrow. He contends that in those rare cases when an employee is in a protracted state of duress, due process requires that he be permitted to withdraw his resignation after the expiration of a twenty-day limitation which would otherwise apply.

I find no explicit authority on whether the Constitution requires such a "duress extension". In Van Arsdel v. Texas A&M University, 628 F.2d 344 (5th Cir. 1980), the Fifth Circuit apparently assumed that such a requirement exists. Van Arsdel was a tenured university professor, who was charged with sexual harassment. His department head met with him, and explained that the university was likely to bring dismissal proceedings against him. Van Arsdel instead chose to resign. The court held that, as a matter of law, Van Arsdel was not under duress when he resigned. They did not discuss the possible constitutional significance of the opposite conclusion. Cf. Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980) (federal employee alleged that he was coerced into resigning by illegal threats, and did not exhaust his federal civil service remedy because he was under duress; court gave him an action for damages against the people responsible for his failure to exhaust, but refused to supplement the federal administrative remedy with a Bivens cause of action).

Despite the absence of authority on this particular point, I am persuaded by plaintiff's position. If he could not act in his own self-interest when he submitted his resignation, it would be unfair not to permit him to withdraw it as soon as he recovered, provided that he did so within a reasonable time after it was submitted. The length of the necessary "duress extension" to the twenty-day rule could vary with the circumstances. If enough time had passed, it might be reasonable for the Civil Service Commission to permit withdrawal of the resignation only if plaintiff would waive his right to back pay,⁹ and settle for just reinstatement. It would be unfair, however, to deprive him absolutely of his right to seek reinstatement because he did not withdraw his resignation within twenty days, without regard to his state of mind during those twenty days or the absence of any harm to Wayne County from withdrawal at a later date.

Nonetheless, I must grant summary judgment for Wayne County on this claim. Even if the jury found that plaintiff was under duress for more than twenty days, he has offered no proof that the Civil Service Commission refused to allow him to withdraw his resignation once he was able to ask them to do so. See Bishop v. Tice, 622 F.2d at 361-62 (Gibson, J., concurring in part and dissenting in part). Indeed, it is conceded that plaintiff never asked permission to withdraw his resignation. I cannot assume that the Commission would have refused to extend their twenty-day rule, even though plaintiff was under duress. The federal civil service system provides for equitable extension of such time limits. 5 C.F.R. § 1201.12 (1980). Employees in that system have often withdrawn resignations submitted under duress. E. g., Wilson v. Schultz, 475 F.2d 997 (D.C. Cir. 1973); Goodman v. United States, 424 F.2d 914 (D.C. Cir. 1970); Pascal v. United States, 543 F.2d 1284 (Ct.Cl.1976); Gratehouse v. United States, 512 F.2d 1104 (Ct.Cl.1975); Cunningham v. United States, 423 F.2d 1379 (Ct.Cl.1970). These examples suggest that the Commission might well have agreed to extend its twenty-day limit, and grant plaintiff a hearing. If they had done so, they would still have been able fully to protect plaintiff's interest in his job. Mich. Comp.Laws § 38.416 (Mich.Stat.Ann. § 5.1191(16) (Callaghan 1973)); Wayne County Civil Service Commission Rule 14, section 10. Plaintiff has failed to prove that he was denied an adequate hearing. He simply failed to ask for one.

Different considerations govern plaintiff's liberty interest claim. The purpose of a liberty interest hearing is to provide an employee an opportunity to clear his reputation of the stigma of false accusations. Codd v. Velger, 429 U.S. 624, 629, 97 S.Ct. 882, 885, 51 L.Ed.2d 92 (1977) (per curiam); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 n.12, 92 S.Ct. 2701, 2707 n.12, 33 L.Ed.2d 548 (1972). The guarantee of reinstatement within a reasonable time and an award of back pay is almost always sufficient to protect an employee's property interest in his job. Arnett v. Kennedy, 416 U.S. 134, 167-71, 94 S.Ct. 1633, 1650-52, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part). Such a guarantee is not necessarily sufficient to protect an employee's reputation. An insidious type of damage sets in when someone's professional reputation is questioned. At a later date, this damage may be difficult to detect, much less correct. See Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042, 1051, 55 L.Ed.2d 252 (1978). If it can be corrected, some kind of affirmative injunctive relief may be necessary. Thus, a remedy may be constitutionally adequate in a particular case to protect an employee's property interest, but inadequate to protect his liberty.

In this case, the Civil Service Commission was authorized only to reinstate plaintiff and award him back pay. Civil Service Commission Rule 14, section 10. If such a remedy had been provided within a very short period of time after plaintiff...